Netherlands – Court of The Hague, 16 August 2018, AWB 17/15601
| Country of Decision: | Netherlands |
| Country of applicant: | Syria |
| Court name: | Court of The Hague |
| Date of decision: | 16-08-2018 |
| Citation: | AWB 17/15601 |
| Additional citation: | ECLI:NL: RBDHA: 2018:9927 |
Keywords:
| Keywords |
|
Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
|
Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
|
Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The official date of an Islamic marriage contracted in Syria needs to be determined with reference to Syrian law. An official notice by the Dutch Foreign Affairs Ministry’s states that “in the opinion of the Syrian authorities, the date set by the Sharia Court will be the official date of marriage.”
If according to the marriage certificate issued by the Sharia Court the marriage predates a sponsor’s entry into the Netherlands, it is sufficiently established that a valid marriage existed before this entry, also when registration before the Sharia Court took place after the entry.
Facts:
A beneficiary of international protection filed a request for family reunification to be joined by his spouse. The State Secretary refused this request, arguing that at the time of the sponsor’s arrival in The Netherlands, there was no officially registered marriage.
The sponsor appeals this decision before the Court of The Hague. He claims that he and his spouse are in a traditional Islamic marriage in Syria. This marriage could only be officially registered after he arrived in the Netherlands.
Decision & reasoning:
The Court first examines the relevant legal framework. When the sponsor is a refugee, family reunification with a spouse is possible when the marriage is legally valid and predates his entry. The Court observes that according to the Dutch Civil Code a marriage contracted outside the Netherlands is recognized as valid if that marriage is valid pursuant to the law of the state in which the marriage took place.
It is not disputed that the marriage certificate drawn up by the Sharia Court (after the sponsor entered the Netherlands) is authentic.
The Court then examines how the date of the marriage has to be established.
The Sharia Court registered the marriage as having been contracted on 5 February 2015 (before the sponsor’s entry in the Netherlands). An official notice by the Ministry of Foreign Affairs specifies: “In the opinion of the Syrian authorities, the date set by the Sharia Court will be the official date of marriage.”
Therefore, the Court concludes, the sponsor and the spouse with whom he wants to be reunited were in a valid marriage at the time the sponsor entered the Netherlands. The Court annuls the decision by the State Secretary.
Outcome:
Appeal granted.
Subsequent proceedings:
The Council of State upheld this decision in higher appeal (Council of State, 6 June 2019, 201807201/1/V1).
Observations/comments:
The Court applies the guidelines issued by the Foreign Affairs Ministry in its official notice on Syrian documents (‘Thematisch Ambtsbericht over documenten in Syrië’, 9 October 2017). This implies that the date of an Islamic marriage has to be established based on the documents issued by the Sharia Court.
This summary was written by Roel Stynen, Law student at Ghent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 10:31 (1) Civil Code (Burgerlijk Wetboek) |
| Article 29 (2) Aliens Law (Vreemdelingenwet) |
| C2/4.1 Aliens Circular (Vreemdelingencirculaire) |